Law of Wills, 2016A

This equitable principle of law has been explained under two different theories. The first theory is
specific performance of the contract to adopt. Applying this theory, courts enforce the promise of
the adoptive parent provided that sufficient consideration is given in return for the promise of
adoption. However, “[c]ourts grant this remedy only against the estate of a deceased promisor.” See
Note, Equitable Adoption: They took him into their home and called him Fred, 58 Va.L.Rev. 727, 730 (1972).
The second theory is estoppel under which the personal representative of the estate of the adoptive
parent is estopped from asserting that the child was not an adopted child. Specifically:
“[estoppel operates] to preclude adoptive parents and their privies [i.e., the estate] from
asserting the invalidity of adoption proceedings, or, at least, the status of the adopted child,
when, by performance upon the part of the child, the adoptive parents have received all the
benefits and privileges accruing from such performance, and they by their representations
induced such performance under the belief of the existence of the status of adopted child.”
Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 908 (1940). It is not important which theory is employed
because the application of the doctrine of equitable adoption is the same. See Note, supra, 58
Va.L.Rev. at 736-38. The courts under either theory focus upon the equities involved and require
“clear and convincing evidence” of the adoption contract. See McGarvey, supra, 311 Md. at 238, 533
A.2d 690.
In formally recognizing the doctrine of equitable adoption in Maryland, McGarvey relied on Besche,
supra, where we said:
“ ‘the authorities very generally establish the proposition, that a parol obligation by a person
to adopt the child of another as his own, accompanied by the virtual though not statutory
adoption, and acted upon by both parties during the obligor's life, may be enforced upon the
death of the obligor, who dies without disposing of the property by his will;’ ... [this
proposition] seems to be supported by the weight of authority in this country to the extent
that the courts decree that a child so treated will be entitled to a right of inheritance from the
estate of the foster parent such as a natural child would enjoy, where the child in question
has faithfully and fully performed the duties of a natural child to the foster parents.”
190 Md. at 546, 59 A.2d 499 (quoting in part Clayton v. Supreme Conclave, Improved O. of H., 130 Md.
31, 36-37, 99 A. 949 (1917)). Besche further stated:
“[B]ased upon the maxim that equity considers that done which ought to be done, ...‘[i]t is
now firmly established that an oral agreement to adopt, where there has been a full and
faithful performance on the part of the adoptive child, but which was never consummated
by formal adoption proceedings during the life of the adoptive parent, will, upon the death
of the latter, and when equity and justice so requires, be enforced to the extent of decreeing
that such child occupies in equity the status of an adopted child, entitled to the same right of
inheritance from so much of his foster parent's estate that remains undisposed of by will or
otherwise, as he would have been had he been a natural born child.’ ”
190 Md. at 547, 59 A.2d 499 (quoting in part Burdick v. Grimshaw, 113 N.J.Eq. 591, 168 A. 186, 188
(1933)).
Maryland therefore recognizes the doctrine of equitable adoption as it applies to an equitably
adopted child who seeks to inherit by intestate succession from the estate of an equitably adoptive
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